Re Shuldham [2012] EWHC 1420 (Ch)

Analysis

The applicant intended to bring a claim for rectification of an instrument by which he and two other family members had purported to grant an interest in land and a lease commencing in the year 2040. The instrument was part of a larger scheme in relation to a deceased’s estate, whereby the freehold of properties subject to it were held by the deceased’s daughter (XH) with a lease in favour of her, currently minor, child (XB). The purpose of this scheme was a reduction in XH’s estate over time so as to mitigate future inheritance tax liabilities.

The family’s concern about bringing the proposed claim related to XH’s husband (KH), who was currently a party to serious litigation against a relative. If the outcome of this litigation was adverse to KH it was thought likely that he would incur large liabilities and that his creditors would look to his share of matrimonial property in order to recover the monies. The applicant, therefore, brought a part 8 claim for orders that:

1. (a) the rectification claim be heard in private; and
2. (b) the parties to the rectification claim and other persons named therein be protected by an order for anonymity.

The applicant contended, in reliance on CPR r39.2(3)(a), (c), (d) and (f), that open justice should be dispensed with and anonymity ordered because: publicity would defeat the object of the claim; would undermine the confidentiality of financial information; was necessary to protect the interests of a child; or involved uncontentious matters arising in the administration of a deceased person’s estate.

Held (dismissing the application):

1. (1) Open justice will only give way to necessity, not to convenience. It must, therefore, be shown that publicity in the given case would amount to a significant denial of access to justice; a desire to keep private matters public is not sufficient [14].
2. (2) A party to litigation does not have a right to a hearing in private or anonymity merely by establishing that his or her case falls within one of the classes identified in CPR r39.2(3) or Practice Direction 39A, para 1.5. These provisions are to be understood and applied in accordance with Convention rights and common law principles [17].
3. (3) The wide armoury of powers afforded to the court is generally sufficient and full anonymity and a total denial of open justice should be remedies of last resort [18].
4. (4) Rectification could be achieved whether the proposed claim was held in public or private; there was no indication that the claim would not proceed without privacy and anonymity being granted; XB would not be a child in 2040 when the instrument in question would affect him and in any case there was no pressing issue of welfare; HMRC may well contend the claim; and there was no evidential basis for supposing that KH’s creditors would pursue the family’s assets. Accordingly, it was not considered necessary, at this stage (ie before issue), to order anonymity or for the claim to be heard in private. It was for the trial judge to determine whether any measures should be used to protect identities and confidential information [20], [25]-[28], [30].

JUDGMENT Mr Justice Floyd: [1] By this Part 8 claim, Mr Shuldham seeks orders (a) that a claim which he and others intend to bring seeking rectification of an instrument made between himself and others (the rectification claim) be heard in private and (b) that the identity of the parties to and other persons named …

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